Melissa Harris-Perry: We're living here in the wake of last week's Supreme Court decision around the Texas abortion law. We just talked with a Texas abortion provider, Doctor [unintelligible 00:00:08], but now we want to understand a bit more about the complicated legal path ahead for challenges to Texas's-SV8. Here to help us out is Melissa Murray law professor NYU, faculty of the Birnbaum Women's Leadership Network, and co-host of the legal podcast, Strict Scrutiny. Great as always to have you with us Professor Murray, thank

Melissa Murray: Thank you for having me.

Melissa Harris-Perry: All right, so this was actually complicated. It took us a while to wrap our heads around it. Can you help us understand what the court actually decided and told us on Friday?

Melissa Murray: Sure. Remember these two cases that came before the court in November were not about whether or not the Texas law's constitutional. That was put off for another day. This question was purely jurisdictional. Should these lawsuits be in federal court in the first place? Were these the right defendants for the clinic providers to be suing?

In this particular case, the court made two decisions. One, it said that the Department of Justice's suit against the state of Texas could not proceed, but it did allow the clinic providers to continue their suit, but only with respect to a certain number of defendants. The court said that the clinic providers could not bring their suit against the state court judges and clerks, and those were actually the defendants that the clinic providers really had hoped to continue against because those are the defendants who are in the best position to stop these private lawsuits from happening. If you stop the private lawsuits from happening, then the abortion providers have no fear that they will be prosecuted and they can continue providing abortion care in Texas, which is all but stopped in that state.

Instead, what the court said was that the state court judges and clerks were not appropriate defendants but that the licensing professionals, the individuals that give licenses to these doctors in Texas, those were appropriate defendants. The problem, of course, is that those defendants are actually limited in the kind of relief that they can provide. They can stop the state from taking away the abortion provider's licenses or from penalizing them professionally, but they're really not in a position to stop these private lawsuits from happening. Of course, it is the threat of those lawsuits that makes this lawsuit pernicious, and that it's stopped abortion access in Texas.

Melissa Harris-Perry: Right. Okay. Now, so there's the whole woman's health decision that allows-- and that's the 81, that's allowing this limited set of defendants, but it is allowing providers to bring suit against this limited set of defendants, the licensing folks. Then there is the one that says, "No, federal government has no business in here. That one's out altogether." What?

Melissa Murray: Well, so again, I think I have to be really clear about this. There are no real winners for reproductive rights in this decision. The only real winner here is the court because the court has managed to pull off a decision where it looks like it is doing something, but what it is done is actually really limited in terms of restoring abortion access in Texas. More importantly, they've really curtailed the federal government's ability to step in when states decide that they're going to nullify particular constitutional rights.

The court said that the DOJ could not bring that suit against Texas, which really raises the question, is there anything for the federal government to do when a state like Texas decides it's going to ignore the Supreme Court's decisions altogether.

Melissa Harris-Perry: Okay. Well, I want you to pause right there because Professor Murray, you just used the word nullification, and said that maybe states can do what they want relative to the federal government. We fought a civil war about that, didn't we?

Melissa Murray: It's a terrifying thought, Melissa, and indeed it is exactly what Justice Sonia Sotomayor raised in her dissent in this case. She would have allowed the suits brought by the clinic providers to proceed against the state court judges and clerks. She also would have allowed the DOJ suit to proceed. She made clear, what Texas is doing here is akin to what segregationists did after Brown v. Board of Education, and indeed what southerners did in the lead up to the Civil War, the idea that they can just simply defy what the Supreme Court says, what the federal government says and decide what rights they will enforce and what rights they will not.

Melissa Harris-Perry: Will the Supreme Court simply give us a couple of months and then make a decision in a Mississippi case that will basically reverse what the court has said is even possible here, by reversing while we wait, or at least, upturning it in a way that no longer provides the constitutional right to seek an abortion?

Melissa Murray: I'm terrible at court prognostication, but it seems likely given what we saw in the court's oral arguments in that Mississippi case on December 1st and what happened in these decisions that it looks like the court is poised to seriously retract abortion rights or overturn them entirely. If that's the case, all of this is moot anyway, because in Texas there will be no constitutional right to an abortion as a matter of Supreme Court precedent if that happens.

Melissa Harris-Perry: Right. I appreciate you saying that you're bad at prognostication because I worry that maybe everyone's bad at Supreme Court prognostication, that it's actually more difficult than we think it is to read the judicial tea leaves about what's coming next. I'm wondering, for folks who are really watching this really from either side on this question, whether or not there are clear indicators in these two Texas decisions about what may happen in Mississippi, or if the legal aspects are so different, that we can't look at Texas to figure out what's likely to happen with Mississippi.

Melissa Murray: Obviously these are two very different sets of cases, but they are inextricably linked in one respect. The Texas case challenges a law that flagrantly violates existing Supreme Court precedent, whereas the Mississippi case questions, whether those precedents should even be observed and deferred to, and so they are linked in that way. I think what we have seen from these two decisions from the court with regard to the DOJ suit and the clinic provider suit is that the court is really not fully exercised to restore abortion rights in Texas. The fact that they've chosen these particular set of licensing officials to be the proper defendants really limits the amount of relief that can be provided, and that suggests that they're not that interested in restoring this right in Texas, at least not in this particular moment. I think that's the most we can read these cases, but it is a very harrowing landscape looking forward for reproductive rights.

Melissa Harris-Perry: We have just 30 seconds left, but President Biden's got a new report about whether or not it's possible to expand the court. Any sense that that is what will happen?

Melissa Murray: Well, that commission was never charged with making full recommendations, and they issued a report and there wasn't a great deal of fanfare. I think there was more anticipation about the commission being convened than there was about its reports, but they have made clear that they are supportive of the idea of term limits. They don't think it will take a constitutional amendment to impose term limits, but they're mixed on the question of court expansion, although there have been some dissenting voices from the commission who have said like Larry Tribe, and Nancy Gartner, a former federal judge that they went into this favoring term limits, but not favoring court expansion and their positions flipped.

Melissa Harris-Perry: Melissa Murray is co-host of the legal podcast, Strict Scrutiny. Thanks so much, Professor Murray.

Melissa Murray: Thank you, Melissa.

[00:07:36] [END OF AUDIO]

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